Rajasthan High Court - Jodhpur
Shamsuddin vs State Of Rajasthan (2025:Rj-Jd:45370) on 15 October, 2025
[2025:RJ-JD:45370]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision Petition No. 1365/2025
Shamsuddin S/o Ismail, Aged About 75 Years, Resident Of Bhoot
Bungalow, Dungla, District Chittorgarh. (Rajasthan) (Presently
Lodged In Central Jail Udaipur)
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Mohammad Shafi S/o Wali Mohammad, Resident Of 166,
Raza Colony, Mullatlai, Near Badi Masjid, Udaipur
(Rajasthan)
----Respondents
For Petitioner(s) : Mr. Gopal Singh Bhati.
For Respondent(s) : Mr. HS Jodha, PP.
Mr. Ashok Kumar for R/2.
HON'BLE MR. JUSTICE MUKESH RAJPUROHIT
Order
15/10/2025
1. Application under Section 5 of the Limitation Act seeking
condonation of delay is allowed, for the reasons mentioned
therein.
2. The present revision petition has been filed by the petitioner
challenging the judgment 09.01.2023 of the learned Special
Judicial Magistrate (NI Act Cases), No.4, Udaipur, in Criminal Case
No.4582/2017 whereby the learned trial Court has convicted the
petitioner under Section 138 of the Negotiable Instruments Act
and sentenced to one year's simple imprisonment and a fine of Rs.
3,00,000/- and in default of payment of the fine to further simple
imprisonment of one month.
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3. The petitioner has also challenged the judgment dated
dated 06.12.2023, passed by the learned Special Judge SC/ST
(Prevention of Atrocities) Cases, Udaipur, in Criminal Appeal
No.13/2023 (CIS No.13/2023), whereby, the appeal assailing the
above-mentioned order was dismissed.
4. Learned counsel for petitioner submits that both the parties
have settled the matter and therefore, in view of the provision of
Section 147 of the Negotiable Instruments Act, 1881, the present
revision petition may be allowed. He submits that a settlement
deed was executed on 08.10.2025 by both the parties in the
presence of witnesses, fortifying the fact that the respondent No.2
has received the entire outstanding amount and has no objection
if the revision petition is allowed on the basis of the said
compromise.
5. On specific query, the learned counsel for the respondent
No.2 stated that in view of the fact that the parties have settled
the issue and the amount has been paid, he has no objection if
the present revision petition is allowed.
6. Learned Public Prosecutor has opposed the present revision
petition, however, he is not in a position to refute the factum of
compromise arrived at between the parties.
7. Considered the spirit of the provisions of Section 147 of the
Negotiable Instruments Act, 1881, which provides as under:-
"147. Offences to be compoundable.-Notwithstanding
anything contained in the Code of Criminal Procedure, 1973
(2 of 1974), every offence punishable under this Act shall be
compoundable"
8. In the case of Damodar S. Prabhu vs. Sayed Babalal H
reported at 2010 (2) SCC (Cri) 1328, the Hon'ble Apex Court had
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formulated the guidelines for compounding the offence under
Section 138 N.I. Act wherein in para 21, it was pleased to observe
as under:-
"With regard to the progression of litigation in cheque
bouncing cases, the learned Attorney General has urged this
Court to frame guidelines for a graded scheme of imposing costs
on parties who unduly delay compounding of the offence. It was
submitted that the requirement of deposit of the costs will act as
a deterrent for delayed composition, since at present, free and
easy compounding of offences at any stage, however belated,
gives an incentive to the drawer of the cheque to delay settling
the cases for years. An application for compounding made after
several years not only results in the system being burdened but
the complainant is also deprived of effective justice. In view of
this submission, we direct that the following guidelines be
followed:-
THE GUIDELINES
(i) In the circumstances, it is proposed as follows:
(a) That directions can be given that the Writ of Summons
be suitably modified making it clear to the accused that he could
make an application for compounding of the offences at the first
or second hearing of the case and that if such an application is
made, compounding may be allowed by the court without
imposing any costs on the accused.
(b) If the accused does not make an application for
compounding as aforesaid, then if an application for compounding
is made before the Magistrate at a subsequent stage,
compounding can be allowed subject to the condition that the
accused will be required to pay 10% of the cheque amount to be
deposited as a condition for compounding with the Legal Services
Authority, or such authority as the Court deems fit.
(c) Similarly, if the application for compounding is made
before the Sessions Court or a High Court in revision or appeal,
such compounding may be allowed on the condition that the
accused pays 15% of the cheque amount by way of costs.
(d) Finally, if the application for compounding is made
before the Supreme Court, the figure would increase to 20% of
the cheque amount.
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9. In the case of M/s. Meters and Instruments Private
Limited and Anr. vs. Kanchan Mehta reported at 2018 (1) SCC
560, the Hon'ble Apex Court in para 18, was pleased to observe as
under:-
i) Offence under Section 138 of the Act is primarily a civil wrong.
Burden of proof is on accused in view presumption under Section
139 but the standard of such proof is "preponderance of
probabilities". The same has to be normally tried summarily as
per provisions of summary trial under the Cr.P.C. but with such
variation as may be appropriate to proceedings under Chapter
XVII of the Act. Thus read, principle of Section 258 Cr.P.C. will
apply and the Court can close the proceedings and discharge the
accused on satisfaction that the cheque amount with assessed
costs and interest is paid and if there is no reason to proceed
with the punitive aspect.
(ii) The object of the provision being primarily compensatory,
punitive element being mainly with the object of enforcing the
compensatory element, compounding at the initial stage has to
be encouraged but is not debarred at later stage subject to
appropriate compensation as may be found acceptable to the
parties or the Court.
(iii) Though compounding requires consent of both parties, even
in absence of such consent, the Court, in the interests of justice,
on being satisfied that the complainant has been duly
compensated, can in its discretion close the proceedings and
discharge the accused.
(iv)Procedure for trial of cases under Chapter XVII of the Act has
normally to be summary. The discretion of the Magistrate under
second proviso to Section 143, to hold that it was undesirable to
try the case summarily as sentence of more than one year may
have to be passed, is to be exercised after considering the further
fact that apart from the sentence of imprisonment, the Court has
jurisdiction under Section 357(3) Cr.P.C. to award suitable
compensation with default sentence under Section 64 IPC and
with further powers of recovery under Section 431 Cr.P.C. With
this approach, prison sentence of more than one year may not be
required in all cases.
(v) Since evidence of the complaint can be given on affidavit,
subject to the Court summoning the person giving affidavit and
examining him and the bank's slip being prima facie evidence of
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the dishonor of cheque, it is unnecessary for the Magistrate to
record any further preliminary evidence. Such affidavit evidence
can be read as evidence at all stages of trial or other
proceedings. The manner of examination of the person giving
affidavit can be as per Section 264 Cr.P.C. The scheme is to
follow summary procedure except where exercise of power under
second proviso to Section 143 becomes necessary, where
sentence of one year may have to be awarded and compensation
under Section 357(3) is considered inadequate, having regard to
the amount of the cheque, the financial capacity and the conduct
of the accused or any other circumstances'.
10. The Hon'ble Apex Court in the case of Vinay Devanna
Nayak vs. Ryot Seva Sahkari Bank Limited reported at AIR
2008 SC 716 was pleased to observe as under:-
"18. Taking into consideration even the said provision (Section
147) and the primary object underlying Section 138, in our
judgment, there is no reason to refuse compromise between the
parties. We, therefore, dispose of the appeal on the basis of the
settlement arrived at between the appellant and the respondent.
19. For the foregoing reasons the appeal deserves to be allowed
and is accordingly allowed by holding that since the matter has
been compromised between the parties and the amount of
Rs.45,000/- has been paid by the appellant towards full and final
settlement to the respondent-bank towards its dues, the
appellant is entitled to acquittal. The order of conviction and
sentence recorded by all courts is set aside and he is acquitted of
the charge levelled against him."
11. Recently, the Apex Court considering the judgment of
Damodar S. Prabhu (supra) in the case of Sanjabij Tari v.
Kishore S. Borcar & Anr. reported in 2025 INSC 1158 had
issued the guidelines for compounding the offence under Section
138 N.I. Act wherein in para 38, it was pleased to observe as
under:-
"38. Since a very large number of cheque bouncing cases are still
pending and interest rates have fallen in the last few years, this
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Court is of the view that it is time to 'revisit and tweak the
guidelines'. Accordingly, the aforesaid guidelines of compounding
are modified as under:-
(a) If the accused pays the cheque amount before recording
of his
evidence (namely defence evidence), then the Trial Court
may allow compounding of the offence without imposing
any cost or penalty on the accused.
(b) If the accused makes the payment of the cheque
amount post the recording of his evidence but prior to the
pronouncement of judgment by the Trial Court, the
Magistrate may allow compounding of the offence on
payment of additional 5% of the cheque amount with the
Legal Services Authority or such other Authority as the
Court deems fit.
(c) Similarly, if the payment of cheque amount is made
before the Sessions Court or a High Court in Revision or
Appeal, such Court may compound the offence on the
condition that the accused pays 7.5% of the cheque
amount by way of costs.
(d) Finally, if the cheque amount is tendered before this
Court, the figure would increase to 10% of the cheque
amount."
12. Considering the statements made by both the learned
counsel and after perusal of settlement deed dated 08.10.2025 as
also, taking guidance from the judgments referred to supra, the
present revision petition is allowed in view of the compromise
entered between parties.
13. However, since the compromise has been arrived at after
rejection of the appeal preferred by the petitioner, a cost of 7.5%
of the cheque amount deserves to be imposed upon the petitioner
in light of the decision rendered by the Hon'ble Apex Court in the
case of Sanjabij Tari (supra).
14. Accordingly, the conviction and sentence of imprisonment
awarded to the petitioner for offence under Section 138 NI Act
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vide judgment 09.01.2023 of the learned Special Judicial
Magistrate (NI Act Cases), No.4, Udaipur, in Criminal Case
No.4582/2017 and judgment dated 06.12.2023, passed by the
learned Special Judge SC/ST (Prevention of Atrocities) Cases,
Udaipur, in Criminal Appeal No.13/2023 (CIS No.13/2023) are
hereby quashed set aside on the basis of the aforesaid
compromise subject to deposition of cost of 7.5% of the cheque
amount by the petitioner. The cost shall be deposited by the
petitioner before the Rajasthan State Legal Services Authority,
Jodhpur within a period of one month from today. In case, the cost
is not deposited by the petitioner before the Rajasthan State Legal
Services Authority, Jodhpur within the stipulated period, the
revision petition may be listed before this Court for passing
appropriate orders.
15. The petitioner is accordingly acquitted from the offence
punishable under Section 138 Negotiable Instrument Act, 1881.
The petitioner is lodged at Central Jail, Udaipur, he may be
released forthwith if not required in any other case.
16. All the pending applications are hereby disposed of
accordingly.
16. Copy of this order be sent to the Rajasthan State Legal
Services Authority, Jodhpur.
(MUKESH RAJPUROHIT),J
498-/Jitender//-
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